Judge: Mary H. Strobel, Case: 22STLC05740, Date: 2022-12-08 Tentative Ruling

Case Number: 22STLC05740    Hearing Date: December 8, 2022    Dept: 82

Plaintiff William Doyle (“Plaintiff”) moves for a writ of attachment against Defendant Precision Pipeline, Inc. (“Defendant”) in the amount of $21,000.

Relevant Procedural History

            On August 31, 2022, Plaintiff, in pro per, filed a complaint against Defendant for common counts and breach of contract.  Defendant has not answered.

            On September 8, 2022, Plaintiff filed the instant application for writ of attachment and supporting papers.

            On October 14, 2022, Plaintiff filed proof of service showing personal service on Defendant of the summons, complaint, and application for writ of attachment on September 22, 2022.

            No opposition has been received. 

Summary of Applicable Law

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this article for a right to attach order and a writ of attachment by filing an application for the order and writ with the court in which the action is brought.”  (CCP § 484.010.)

The application shall be executed under oath and must include: (1) a statement showing that the attachment is sought to secure the recovery on a claim upon which an attachment may be issued; (2) a statement of the amount to be secured by the attachment; (3) a statement that the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; (4) a statement that the applicant has no information or belief that the claim is discharged or that the prosecution of the action is stayed in a proceeding under the Bankruptcy Act (11 U.S.C. section 101 et seq.); and (5) a description of the property to be attached under the writ of attachment and a statement that the plaintiff is informed and believes that such property is subject to attachment.  (CCP § 484.020.)

“The application [for a writ of attachment] shall be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based.”  (CCP § 484.030.) 

The Court shall issue a right to attach order if the Court finds all of the following:

(1) The claim upon which the attachment is based is one upon which an attachment may be issued.

(2) The plaintiff has established the probable validity of the claim upon which the attachment is based.

(3) The attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based.

(4) The amount to be secured by the attachment is greater than zero.

CCP § 484.090.

“A claim has ‘probable validity’ where it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.”  (CCP § 481.190.)  “In determining the probable validity of a claim where the defendant makes an appearance, the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.”  (See Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.)

“The Attachment Law statutes are subject to strict construction.” (Epstein v. Abrams (1997) 57 Cal.App.4th 1159, 1168.) 

Analysis 

1.    Notice

Notice appears proper as stated above. 

2.    Probably Validity of Plaintiff’s Claim

The application is based on Plaintiff’s cause of action for breach of contract.  To establish a claim for breach of contract, a plaintiff must prove: (1) existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach of the contract; and (4) damages incurred by plaintiff as a result of the breach.  (Durell v. Sharp Healthcare, (2010) 183 Cal.App.4th 1350, 1367.) 

To prove the probable validity of its claim, Plaintiff submits his own declaration, and also a declaration of Tony Murray, president of American Truck and Tool, Inc.  Murray declares that American Truck and Tool, Inc. is engaged in the equipment rental business; that Defendant applied for a line of credit to rent construction equipment in 2020; that American Truck and Tool approved the credit line and set up an account receivable in Defendant’s name; and that all rentals were made under written contracts, in which the amounts due were payable 30 days after billing.  Murray submits a copy of Defendant’s credit application, which corroborates that “the terms [of payment] are Net 30 days from date of Invoice.”  Murray declares that Defendant was billed for numerous rentals during the period of September 2020 through February 25, 2022, and that it failed to pay 17 invoices for a total of $20,296.52.  He declares that he assigned the claim to Plaintiff.  (Murray Decl. ¶¶ 1-15 and Exh. 1 and 2.) 

Plaintiff declares that “[o]n or about August 28, 2022 and prior to the commencement of this action, I was assigned a claim from ‘American truck & tool Inc. dba American rentals, located in Long Beach, Calif…. against a company, known as ‘Precision pipeline Inc., a corporation.’"  (Doyle Decl. ¶ 1.)  He declares that such “assignment included all pertinent supporting documents, including a credit application made to American rentals along with of 17 unpaid invoices showing that the debt was owing, along with some E mails between ‘precision’ & ‘American rentals’.  The debt assigned was shown to have been incurred during a 12 month period between Sept. 29, 2021. and Feb. 25, 2022.”  (Id. ¶¶ 3-4.)    

Defendant has not objected to or responded to any of this evidence.  (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”].) 

Murray provides evidence of the contracts with Defendant, including the credit application.  He describes the contractual relationship, American truck & tool Inc.’s performance, and Defendant’s breach.  The final billing statement submitted by Murray shows 17 unpaid invoices, by date and invoice number, and the unpaid amounts.  Murray and Plaintiff submit evidence of the assignment.  The amounts stated in the “balance” column of the final billing statement total $19,898.55.  The statement also shows a finance charge of $397.97 and a “Total Due” of $20,296.52.  Plaintiff has submitted sufficient evidence to support all elements of its contract claim. 

Plaintiff shows a probably valid contract claim against Defendant in the amount of $20,296.52.  Plaintiff reasonably estimates his legal costs of $1,000. 

However, Plaintiff only requested attachment of $21,000, including $1,000 in costs.  (Appl. ¶ 8.)  Accordingly, the attachment must be limited to that amount. 

3.    Basis of Attachment

“[A]n attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500) exclusive of costs, interest, and attorney's fees.”  (CCP § 483.010(a).)  “An attachment may not be issued on a claim which is secured by any interest in real property arising from agreement ….”  (CCP § 483.010(b).) 

Here, Plaintiff’s application for writ of attachment is based on a contract where the total amount allegedly due is in excess of $500.  The contract claim is not secured by real property.   Plaintiff’s damages are fixed and readily ascertainable from the credit application; the terms of the contracts, as summarized by Murray; Murray’s testimony that Defendant “made numerous rentals on credit” and failed to pay the amounts due on the invoices; and the final billing statement. 

4.    Purpose and Amount of Attachment

Code of Civil Procedure section 484.090 states that the Court shall issue a right to attach order if “the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based . . . [and] the amount to be secured by the attachment is greater than zero.”

Plaintiff declares, and the court finds, that attachment is not sought for a purpose other than the recovery on Plaintiff’s claim.  (Appl. ¶ 4.)  The amount to be secured is greater than zero.

5.    Reduction of Amount to be Secured

Defendant does not argue or show that the amount of attachment should be reduced by an attachable cross-claim or affirmative defense.  (See CCP § 483.015 and Lydig Construction, Inc. v. Martinez Steel Corp. (2015) 234 Cal.App.4th 937, 945.)  

6.    Subject Property

Code of Civil Procedure section 487.010(a) provides that “[w]here the defendant is a corporation, all corporate property for which a method of levy is provided” is subject to attachment.   Thus, a request for attachment of all of Defendant’s property is appropriate. 

7.    Exemptions

Defendant has not claimed any exemptions. 

8.    Undertaking

Code of Civil Procedure section 489.210 requires the plaintiff to file an undertaking before issuance of a writ of attachment.  Code of Civil Procedure section 489.220 provides, with exceptions, for an undertaking in the amount of $10,000.  Neither party argues for a different amount of undertaking.

The application states that Plaintiff already filed an undertaking of $10,000.  (Appl. ¶ 15.)  The court has not received evidence of an undertaking filed by Plaintiff. 

Conclusion

The application is GRANTED in the amount requested of $21,000.  Plaintiff to post an undertaking of $10,000.